Ali Mohd. Malla vs State and Others

Mohd. Yaqoob Mir, J.—Petitioner has sought issuance of mandamus so as to command the respondents to deem and declare the petitioner

to have been appointed to the post of 'Co-operative Extension Officer' (hereinafter referred to for short ""CEO""), on substantive basis w.e.f.

19.10.2002 or in alternative from 15.5.2006 from which date pay scale attached to the post has been released in his favour. Further more in

alternative respondents may be directed to treat petitioner the way one Sharif-ud-din has been treated, prohibit the respondents from removing the

petitioner from the post 'Co-operative Extension Officer' (CEO).

Petitioner admittedly was posted as Senior Assistant in the respondent-department. His devotion to work and responsible approach in

discharging his duty has been appreciated and in recognition of his exemplary performance concerned Minister has issued letter of appreciation,

based on which petitioner has made representation for promotion.

Director Rural Development/respondent No. 2 vide his No. DRDK/Estt/PF-26/SA/8831 dated 3.8.2002 addressed to Principal Secretary to

Rural Development Department J & K Srinagar, has projected the performance of the petitioner and commitment to job coupled with punctuality

to the satisfaction of his superiors and has also highlighted the performance of work by the petitioner even under extremely difficult conditions i.e.

during strict bandhs or adverse conditions. It is also mentioned that Hon'ble Minister for Agriculture and for Rural Development and Co-operative

department has appreciated the work. The case of the petitioner on the basis of position of seniority has been examined. He shall have to wait for

some time till his seniors are cleared but at the end Director has mentioned that one post of ""C.E.O"" available in the office is not encadred under

SRO 133/90 nor have the rules been framed for filling up the post, therefore Government may consider adjustment of the petitioner against the said

post.

Respondent No. 1 vide his Communication No. PS/RD/CEO/2002/532 dated 19.9.2002, while responding to the Communication of

respondent No. 2 has mentioned that it is not possible to agree with the proposal, as some seniors of the petitioner have yet not been promoted as

Head Assistants. There has to be a proper DPC before anybody can be elevated, but at the same time Director has been asked to consider the

case on merit basis, if performance is best among other Senior Assistants petitioner can be asked to look after the work of 'CEO' as incharge in

addition to his normal duties in his own pay and grade but same shall not confer any superior claim to him for the post of 'CEO'.

Based on the said communication respondent No. 2 has issued order No. 580/DRDK of 2002 dated 19.10.2002, where under petitioner has

been asked to look after the work of 'CEO' in addition to his own duties. Thereafter respondent No. 2 has issued one more order bearing No.

678-DRDK of 2002 dated 21.12.2002, where under charge allowance has been sanctioned in favour of the petitioner.

Respondents filed their reply stating therein that the petitioner cannot claim promotion to the post of 'CEO'. He belongs to Ministerial Cadre

post, whereas the post of 'CEO' is an executive post. The Jammu & Kashmir Rural Development Subordinate Services Recruitment Rules 2007

provided, as to who can be promoted to the post of 'CEO', where under petitioner is not entitled.

Admittedly the post of Co-operative Extension Officer 'CEO' was not earlier encadred, so has been encadred in the Rules of 2007. Petitioner

filed the amended petition, where under has sought treatment as has been given to one Sharief-ud-din.

Heard. Considered.

Post of 'Co-operative Extension officer' hereinafter for short referred to as 'CEO' was not encadred in the Service Recruitment Rules notified on

9th of April 1990, so procedure and feeding channel for the post was not prescribed, same position has remained up to year 2007 and in the year

2007 notification has been issued i.e. rules have been framed. Post of CEO has been encadred.

In terms of the rules framed in the year 1990 and also framed in year 2007. There are three categories of Subordinate Services, one Executive,

second Ministerial and third technical. 'CEO' is shown in the category of Executive as per Schedule II-A of 2007 rules, method of recruitment to

the post of CEO is prescribed. It is Panchayat Inspector G-II Plantation Ranger and Mukhya Savika in the grade of Rs. 5000-8000/-, who are

eligible for the post of CEO. Relevant portion of the Schedule A-2 is reproduced herein:

SCHEDULE-II-A

Jammu and Kashmir Rural Development Department

Subordinate services Recruitment Rules 2007.

(Executive.)

General

Class Cate Designation Grade Min. Method of

gory qualif Recruitment

ication

for

direct

recruit-

ment

II A Head Quarter Assistant 5700- 100% from class III

G-II/Co-operative 10100 categories A and B

Extension officer

III A Panchayat Inspector G 5000

II/Plantation Ranger 8000

B Mukhya Savika 5000-

8000

Petitioner belong to Ministerial cadre. In terms of Schedule-II B, next promotion of Senior Assistant is to the post of Head Assistant and from

the Head Assistant to the post of Sectional officer.

In the schedule appended to rules of 1990 again position is the same i.e. next promotion to the Senior Assistant is Head Assistant and then

Head Assistant to Sectional Officer.

Petitioner at the most on the basis of performance and dedication could be promoted to the post of Head Assistant and then to the post of

Sectional officer. In that connection both respondents 1 and 2 have categorically stated that there are seniors and also there has to be a proper

DPC. Sidelining that situation they have devised a method so as to accommodate the petitioner as CEO by taking benefit of availability of

unencadred post of CEO in the grade of Rs. 4500-7000, now in the grade of Rs. 5700-10100, when Senior Assistant is in the grade of Rs. 4000-

6000. Head Assistant in the grade of Rs. 5000-8000, Sectional officer in the grade of Rs. 6500-10500 as reflected in the Schedule 1-A of the

Recruitment Rules 2007, have adjusted the petitioner by keeping him as in charge in his own pay and grade, subsequently has been given charge

allowance. Thereafter interim direction issued in this petition dated 27.3.2006 has been wrongly applied. The said interim direction as reflected in

order No. 483 DRDK of 2006 dated 15.5.2006 in catagoric terms provide for considering the case of the petitioner for release of salary in the

pay scale of Rs. 5700-10100 attached to the post of CEO provided petitioner is entitled in terms of the rules governing the field and if otherwise

eligible.

Director while issuing this order has neither considered the entitlement of the petitioner nor has said anything about the eligibility or about the

rules but has ordered deemed placement of the petitioner in the scale of Rs. 5700-10100 when same was not permissible.

Petitioner no doubt as per the communication placed on record is shown to be a dedicated employee. His dedication has to be appreciated

but not beyond proportions, if at relevant time he was a Senior Assistant, while his case for promotion to the next stage of Head Assistant, he

along with other eligible candidates could be considered and given preference for promotion to the post of Head Assistant carrying now pay scale

of Rs. 5000-8000. There could be no reason ignoring that situation and then to put him incharge of post carrying now the pay scale of Rs. 5700-

10100, which means in grade position he has been placed above the post of Head Assistant. It is true that feeding channel for the post of CEO up

till 2007 was not clear as not encadred, but that does not mean that he had an absolute right of being deemed appointed against the post.

Due to encadrisation, exclusion of promotion of Ministerial staff to Executive, is clear in terms of Rules of 2007, petitioner serving the same

claimed parity and treatment as given to co-employee namely Sharief-ud-din Head Assistant. The case of the said Sharief-ud-din is on a different

footing i.e. he was a Head Assistant one step above the Senior Assistant and in cadre position his grade is Rs. 5000-8000 and his next promotion

could be to the post of Sectional officer now in the grade of Rs. 6500-10500 instead he has been given the post of CEO Carrying the grade of Rs.

5700-10100, therefore prior to encadrisation of the post of CEO placing the Head Assistant in the next grade of Rs. 5700-10100 has some logic,

therefore petitioner cannot claim parity.

Keeping in view the appreciative position as highlighted in various communication, it shall be open for the respondents to consider petitioner for

promotion to the post of Head Assistant and also to the post Sectional Officer as could have been available to him from the year 1990 till date.

There is no merit in the petition, so as to command the respondents to deem the petitioner to have been appointed to the post of CEO. However,

he has been discharging duty of CEO. Monetary benefits in the form of charge allowance and otherwise as have been given to him, shall not be

recovered from him.

Disposed of as above along with the connected CMP(s).